Patrick Breslend

Patent Trials and Appeals Board

Apr 1, 2022

2022000216 (P.T.A.B. Apr. 1, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/430,785 03/18/2017 Patrick R Breslend RB-0150 9175 44759 7590 04/01/2022 Robert C. Brown 1800 Hermitage Boulevard Suite 228 Tallahassee, FL 32308 EXAMINER PAGAN, JENINE MARIE ART UNIT PAPER NUMBER 3736 MAIL DATE DELIVERY MODE 04/01/2022 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PATRICK R. BRESLEND ____________ Appeal 2022-000216 Application 15/430,785 Technology Center 3700 ____________ Before MURRIEL E. CRAWFORD, KENNETH G. SCHOPFER, and TARA L. HUTCHINGS, Administrative Patent Judges. HUTCHINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 10, 11, 13, 15, and 17.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2022). Appellant identifies the inventor, Patrick Breslend, as the real party in interest. Appeal Br. 1. 2 Claims 2, 12, 14, and 16 are canceled, and claims 1 and 3-9 are withdrawn. Appeal 2022-000216 Application 15/430,785 2 CLAIMED INVENTON The claimed invention relates to forming a folded, flattened bag with gussets. See Spec. 17-21. Claims 10 and 15 are the independent claims on appeal. Claim 10, reproduced below, is illustrative of the claimed subject matter: 10. A folded bag formed from a tubular material of uniform material thickness, comprising: a) a front side, a rear side, and left and right sides connecting said front and rear sides, each of said bag sides having a top edge, and a bottom edge opposite said top edge; b) a plurality of left side simple gussets and a plurality of right side simple gussets formed in each of said left and right bag sides, respectively, wherein each simple gusset includes first and second outwardly-extending wings, formed by respective first and second outwardly-extending longitudinal folds and separated by an inwardly-extending longitudinal fold; c) at least one compound gusset formed by folding inwardly and directly upon itself each of said first and second outwardly- extending wings of at least one of said plurality of simple gussets, wherein, in folded bags comprising a plurality of compound gussets, said first and second outwardly-extending wings of each single gusset are folded inwardly directly upon themselves; and d) a bottom edge seal subsuming all of said bottom edges, including all of said gussets, such that said simple and compound gussets are restrained from unfolding at said bottom edge seal, and are unsealed along the entire length of said top edges and therefore are unrestrained from unfolding along said top edges of said front, rear, and left and right sides, defining thereby an open bag mouth. Appeal Br. 11-12 (Claims Appendix). Appeal 2022-000216 Application 15/430,785 3 REJECTIONS Claim 13 is rejected under 35 U.S.C. § 112(b) as indefinite. Claims 10, 11, 13, 15, and 17 are rejected under § 102(a)(1) as anticipated by West (US 6,488,222 B1, issued Dec. 3, 2002). ANALYSIS Indefiniteness Appellant does not address the indefiniteness rejection of claim 13. Accordingly, we summarily affirm the Examiner’s rejection under 35 U.S.C. § 112(b). Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance without consideration of the substantive merits is appropriate where an appellant fails to contest a ground of rejection). Anticipation Independent Claim 10, and Dependent Claims 11 and 13 We are persuaded that the Examiner erred in rejecting independent claim 10 under 35 U.S.C. § 102(a)(1), because West does not teach “at least one compound gusset formed by folding inwardly and directly upon itself each of said first and second outwardly extending wings of at least one of said plurality of simple gussets,” as recited in claim 10, limitation (c). Appeal Br. 11-12 (Claims Appendix). The Examiner finds that Figure 2C of West discloses the argued limitation. Appellant’s Specification defines a “compound gusset” as a gusset formed by folding inwardly and independently each wing of a simple gusset separately. Spec. 17:12-16. The Specification makes clear that the claimed compound gusset excludes West’s C-folds. See, e.g., Spec. 17:3-19, see Appeal 2022-000216 Application 15/430,785 4 also id. at 11:9-13 (“In a compound gusset fold, each gusset wing of a simple gusset fold is further folded inward upon only itself, unlike the prior art of West . . . wherein both gusseted wings of a simple gusset are folded further inward together to form a C-fold.”), 18:10-11 (“Note that compound gussets 46c, 46d are not identical with the C-folds of West.”). In our view, one of ordinary skill in the art would understand in view of the Specification that the claimed compound gusset requires folding inward and separately each wing of a simple gusset. West discloses a folded plastic bag. West 1:7-9. Gusseted tubing 40 has a first gusset formed by folds 30, 32, 34 on a first side of the tubing and a corresponding gusset formed by folds 30’, 32’, 34’ on a second side of the tubing. Id. at 6:12-15, Fig. 2B. Next, the method folds the two gusseted portions of gusseted tubing 40 of Fig. 2B lengthwise, forming side edges 26 and 26’, and forming flaps 27 and 27’ from portions of the gusseted portions of the tubing. Id. at 6:25-30, Fig. 2C. The folded bag is termed as having a “C-fold,” and this description is based on the folding over of flaps on each side of the bag. Id. at 5:49-53. The Examiner finds that West teaches a plurality of gussets 30, 32, 30’, and 32’, and that at least one of the plurality of gussets 30, 32, 30’, and 32’ is folded onto itself, forming the claimed gusset. However, contrary to the Examiner’s finding, West does not teach that each of elements 30, 32, 30, and 32’ is a gusset. Instead, West teaches that elements 30, 32, and 34 together form a first gusset, and folds 30’, 32’, and 34’ together form a second gusset. See West :12-15, Fig. 2B. Because West teaches folding wings 30 and 32 together in a C-fold, and wings 30’ and 32’ together in a C- fold, West does not teach claim 10, limitation (c), i.e., “at least one Appeal 2022-000216 Application 15/430,785 5 compound gusset formed by folding inwardly and directly upon itself each of said first and second outwardly-extending wings of at least one of said plurality of simple gussets.” Appeal Br. 11-12 (Claims Appendix). Therefore, we do not sustain the Examiner’s rejection under 35 U.S.C. § 102(a)(1) of independent claim 10 and its dependent claims. Independent Claim 15 and Dependent Claim 17 Independent claim 15 recites language similar to claim 1. Thus, for reasons similar to those set forth above with respect to independent claim 1, we do not sustain the rejection under 35 U.S.C. § 102(a)(1) of independent claim 15 and its dependent claim. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 13 112(b) Indefiniteness 13 10, 11, 13, 15, 17 102 West 10, 11, 13, 15, 17 Overall Outcome 13 10, 11, 15, 17 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a) (2022). See 37 C.F.R. § 1.136(a)(1)(iv) (2022). AFFIRMED IN PART